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Nov. 30 — The U.S.
Supreme Court grappled during oral argument Nov. 30 with the
question of whether the limitations period for an employee to bring
a constructive discharge claim under Title VII of the 1964 Civil
Rights Act begins when the employee gives notice of resignation,
when the employee actually resigns, or at the time of the
employer's last allegedly discriminatory act.

An employee may assert a constructive discharge
claim when the employer made working conditions so intolerable that
a reasonable person would feel compelled to resign. Former
postmaster Marvin Green claimed he was forced to resign after he
was subjected to harassment in retaliation for filing race
discrimination complaints.

The U.S. Court of Appeals for the Tenth Circuit
ruled that Green waited too long to file his claim under a 45-day
limitations period applicable to federal sector claims under Title
VII. The claim accrued when the U.S. Postal Service gave him a
choice between retiring or taking a lower paying job 300 miles
away, not on the date that he formally resigned a few months later,
the appeals court reasoned (146 DLR A-2, 7/30/14).

The federal appeals courts are split on this issue,
with five circuits using the resignation date and three courts the
“last discriminatory act” standard.

Brian Wolfman of the Stanford Law School Supreme
Court Litigation Clinic argued that the high court should reverse
the appeals court's decision because an employee must definitively
resign before he can claim he was constructively discharged.

The Postal Service agreed with the Tenth Circuit's
ruling but on different grounds. Justice Department attorney Curtis
E. Gannon said the limitations period should be measured from the
date the employee gives notice of his intent to resign. The
limitations period in the present case should be measured from the
date the parties reached a settlement agreement several months
prior to Green's formal resignation, Gannon argued.

Catherine M.A. Carroll, a partner at Wilmer Cutler
Pickering Hale and Dorr LLP in Washington, was appointed by the
Supreme Court to defend the Tenth Circuit's “last discriminatory
act” rule. In every case, it's about identifying what is the
alleged violation, Carroll said.

Agreement Signed Months Before
Resignation

Green, who was a postmaster in Englewood, Colo.,
claimed that his supervisors retaliated against him for filing a
race discrimination complaint after he was overlooked for a
postmaster opening in Boulder, Colo.

Green signed a settlement agreement on Dec. 16,
2009, following a criminal investigation into his alleged
intentional delay of the mail. The agreement provided that the
Postal Service would drop the investigation if he immediately left
his job and used his accrued annual and sick leave through the end
of March 2010. He was given the option to retire or accept a
significantly lower paying position in Wyoming after his accrued
leave expired.

On Feb. 9, 2010, Green informed the Postal Service
that he was resigning at the end of March. On March 22, he made a
complaint to an Equal Employment Opportunity counselor about
constructive discharge.

Green sued in September 2010 asserting various
employment discrimination claims, including the constructive
discharge claim. The district court held, and the Tenth Circuit
affirmed, that the constructive discharge claim was time-barred
because he didn't raise the issue with the EEO counselor within 45
days of signing the Dec. 16 settlement agreement.

Green contended that the limitations period should
be measured from Feb. 9—the date he gave definitive notice of his
decision to resign.

The Supreme Court last April granted review in the
case (80 DLR AA-1, 4/27/15).

Justices Question Time Between
Act, Resignation

Wolfman argued that the cause of action for
constructive discharge isn't complete until an employee resigns. He
urged the high court to make a clear rule that is easy for a
layperson to follow when deciding whether to bring a
complaint.

The date of resignation is easy to identify, Wolfman
asserted, and would be aligned with the Equal Employment
Opportunity Commission's position as well as the majority rule
among the federal appeals courts, he said.

The justices raised concerns about the amount of
time that could elapse between the last alleged discriminatory act
and the employee's resignation date.

What if there's no discrimination for a year before
the employee decides he's going to quit? Justice Antonin Scalia
asked.

Wolfman said this is a concern in theory but not in
practice. “In
reality, there are no such claims.
The claims would be
so weak that those constructive discharge claims are not
brought, and amicus cites no claims of that nature,”
he said in response to this line of questioning.

What happens if someone says. “I can't take it
anymore. I'm leaving in three months” or in the case of a school
teacher who resigns effective the end of the school year? Chief
Justice John G. Roberts asked.

Wolfman clarified that he wasn't asking the court to
find that the limitations period begins on the employee's last day
of work. Rather, the period should begin on the date the employee
definitively tells the employer he's resigning, Wolfman said.

Representing the Postal Service, Gannon argued that
Green gave notice when he signed the settlement agreement because
it included his promise to retire.

When Did Harm Occur?

Arguing in support of the Tenth Circuit's ruling,
Carroll said the court should look to what the employee alleged is
discriminatory.

Justice Stephen G. Breyer mentioned that in
negligence claims the limitations period doesn't begin to run until
the harm occurs. He asked why it should be any different in Title
VII cases.

Green alleges that he was retaliated against when he
was asked to sign the settlement agreement, Carroll said. He
“could have promptly initiated counseling on
that complaint,” she said.

Breyer observed that it's a more challenging
analysis to look at many acts and determine which may have been
discriminatory than to determine the date of resignation.

To contact the reporter on this story: Lisa
Nagele-Piazza in Washington at lnagele@bna.com

To contact the editor responsible for this story:
Susan J. McGolrick at smcgolrick@bna.com

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